Advocate Sidney Pilane this week lashed out at a bench of Court of Appeal (CoA) well regarded judges, accusing them of interjecting him “too much” during his oral submissions.
Pilane who is held with high esteem in the law fraternity cautioned the Judges to guard against interpolating as they interfered with his arguments as well as how he wanted to put them across. The panel consisted of three lordships in the mould of CoA President Justice Ian Kirby, Justice(s) Lord Arthur Hamilton and Jacobus Brand.
Pilane launched the scathing attack when deliberating in a case in which Kgatleng District Council (KDC) was appealing a High Court judgement by Justice Terrence Rannowane. Justice Rannowane had reviewed and set aside the decision by the KDC to refuse to grant Mochudi Wholesalers a building permit and subsequently an occupation permit. The permits, including other requirements satisfaction would have seen Mochudi Wholesalers start trading at the three storey building which is in the shape of a shopping complex now turned white elephant.
Following his one hour deliberations and going into the lunch break, the nonconformist Advocate Pilane raised the concern to Kirby and the two other juries that “you interject too much and I get derailed on my submissions”. Pilane, who can be easily regarded among the first Batswana to earn the title of an Advocate, justified to the panel of judges that they were making him not to argue his case as he wants to “in a coherent manner”.
“One judge asks a question, and while am attempting to answer the other one asks a different one. And I end up not being able to put my main case or argument coherently,” Pilane told the judges to their faces. In hearing the concern, Judge President Kirby who looked not amused by the accusations said they could as well keep quite throughout his submissions if Pilane so wished. “We can all keep quiet, listen until you finish, if it is what you want,” Kirby highlighted to the eccentric Advocate.
In response to Kirby’s comment, Pilane said he was only asking that the judges be considerate. He stated: “I was just asking for you to be considerate and in no way am I implying that the questions/inquiries you pose to me are not helpful. Neither am I saying the answers I give are not of assistance to your lordships.” Kirby also highlighted that senior counsel, Advocate Nigel Redman, who also made submissions before Pilane, was also subjected to similar interjection from the same panel.
It is not the first time that the Judges could not escape the wrath of the one-of-a-kind Pilane whom in February last year expressed the “chilling” similar views. He accused the CoA of having “a lack of respect for lawyers”. According to reports, Pilane told a bench of five CoA judges then that his junior lawyer, Mboki Chilisa (in a case in which they were both pursuing) was “attacked, interrupted and terrorised by the judges who were presiding over a case in which a teacher was fired for criticising President Ian Khama and his administration.”
According to the reports, Advocate Pilane complained that Chilisa was harassed and abused by the judges when he appeared before court. He had said then that “we are happy to be asked questions so that we provide clarity to the court but we want to be respected as we respect the court. He (Chilisa) was constantly interrupted and he hardly finished his sentences.” At some point, Pilane who is also the leader of opposition Botswana Movement for Democracy (BMD), an affiliate of the Umbrella for Democratic Change (UDC), quit the party to try his luck for the Judgeship of the court.
Justice Kirby reserves judgement on main case
Meanwhile, Justice Kirby reserved the judgement on the Council and Mochudi matter to 2 February (in two weeks time). In the main appeal the Council said Justice Rannowane, in his High Court judgement, lost sight of the fact that the application before him was a review of the administrative decision made by the appellant (KDC) on 28 May 2013.
Court papers by KDC indicate that although the appellant (KDC) had negotiated with Mochudi; it had untimely determined that “it could not grant Mochudi a building permit and therefore an occupation permits in respect of the building. The reason for this was manifest. The appellant had not been satisfied by Mochudi that the building is structurally sound.”
The Council continued to point out that, in light of Mochudi having commenced and completed the construction of the building without having obtained the necessary approvals, it was aware that the appellants had been precluded from participating in the building process and from having inspected the construction work at various intervals. “Having regard thereto, it would have been incumbent upon Mochudi to satisfy the appellant of the structurally integrity of the building.”
Justice Rannowane had ruled that the parties were to engage an expert and assess the current structural soundness of the appellant’s building and if satisfied recommend remedial measures and thereafter issue a building and an occupation permit to the appellant. Mochudi Wholesalers Pty (Ltd) had erected the shopping complex and completed in 2003. They were asked in 2009 to demolish and remove the portion of the development from the road reserve as it was said to be encroaching on Pilane/Mochudi road reserve.
On the matter, Pilane said it is clear from the facts that KDC is acting dishonestly and with contumely. “Furthermore the building in question was completed as far back as 2003. More than 12 years have since lapsed with the building vacant, and being subjected to sporadic acts of vandalism, all at their expense.” The appellant, KDC was represented by Senior Counsel, Advocate Nigel Redman, Attorney Laone Serole and Steve Rankwana from Serole and Partners attorneys. Advocate Sidney Pilane together with attorney Monyaka Makunyana were fighting on the side of the Mochudi Wholesalers who own the disputed building.
Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.
Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.
In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).
Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.
I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.
He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.
“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.
There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.
He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.
The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.
They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”
Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.
“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang. A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.
When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”
Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.
In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.
He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.
“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.
He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.
“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.
Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”
He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.
Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.
BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.
Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.
In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.
The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.